Critical Wage Theory Panel Examines Race’s Role in Labor Movements

Scholarly legal research into workers’ rights rarely centers on race, but speakers at a Brooklyn Law School panel discussion titled On Critical Wage Theory established race as a necessary context for researchers, labor organizers, and groups advocating on behalf of workers.

"Unless you have a commitment by labor organizers to racial justice and multidimensional organizing against discrimination, you have not achieved solidarity or accomplished a legitimate goal of organizing in any workplace,” said Professor Shirley Lin, who moderated the Nov. 16 discussion.

The panel featured the scholar behind critical wage theory: University of Nevada Law Professor Ruben Garcia, who examines low-wage workers’ rights through a racial justice lens in his forthcoming book, Critical Wage Theory: Why a Higher Minimum Wage Is Necessary for Racial Justice. Joining him were labor organizers and advocates including Culinary Workers Union communications director Bethany Khan; Ain’t I a Woman campaign organizer Yanin Peña; and Amazon Labor Union President Chris Smalls.

Garcia, in outlining critical wage theory, explained some of its key tenets. “The low minimum wage that we have had is not an accident,” he said. “It is a product of an attempt to keep a class of exploited labor, usually immigrants and workers of color. And again, the low minimum wage also results in low deterrence of wage theft against these very same workers.”

Efforts to raise the federal minimum wage by groups such as Fight for $15 have organically organized around racial solidarity and immigration status, demonstrating the link between race and wage theft, Garcia said. “It is not an accident that the agricultural and domestic worker exemptions [for overtime and minimum wage pay] track racial and gender lines.”

Wage theft should be viewed as a legacy of slavery and involuntary servitude, banned by the 13th Amendment but still “continuing in various ways today,” Garcia said.

Smalls, who was fired two hours after leading the first successful U.S. unionization at an Amazon warehouse, described the racial underpinnings of the Staten Island warehouse walkout, which happened in the early days of the COVID-19 pandemic before vaccines were available.

“It was a life-or-death situation, it was a no-brainer for me to take a stance,” Smalls said. “The pandemic was affecting not just Black and brown workers at Amazon but Black and brown people as a whole and [entire] communities, especially in New York City. We became the epicenter of the world, people were dying here every 15 minutes, and most of the people were Black and brown.”

Smalls, who is Black, said he was already unhappy with his inability to get promoted to a management position at Amazon despite having the requisite experience. But it was Amazon’s reaction to the walkout that prompted his leap into labor organization. A management email mistakenly sent to more than 1,000 people quoted the company’s chief counsel as saying Smalls was “not smart or articulate” and the company should make him “the face” of unionization efforts.

“I said, ‘That’s a good idea,’” Smalls said. “Our campaign lasted 11 months. I stayed at the bus stop outside of the building for over 300 days, talking to workers, signing them up. It was an independent multiracial, Black-worker-led effort,” Smalls said. “And we continue to build our relationship to earn the trust of the workers. We show the workers every day that we care for one another.”

Khan described the same worker-driven spirit at the 87-year-old Culinary Workers Union, representing 60,000 hospitality workers in Nevada. It wields political power by appealing directly to voters, such as with a successful 2004 ballot initiative that raised the state minimum wage, and by canvassing on behalf of candidates such as U.S. Senator Catherine Cortez Masto, helping the Democratic lawmaker retain her seat.

“The union is only as strong as your workers, and as strong as your contract and as strong as how you enforce that contract,” Khan said. The average Culinary Workers Union member earns about $27 an hour, with benefits including free health care and a pension.

It is the largest union organization for immigrant, Black, Latinx, and Asian American and Pacific Islander workers, Khan said, and immigration language in the union contract provides five-year protection to immigrant workers who have temporary protected status.

During the pandemic, the union helped pass Senate Bill 4, the only Covid-19 worker safety law protecting workers in the workplace, and Senate Bill 386, ensuring workers laid off during the pandemic could return to their jobs, Khan said.

Ain’t I a Woman campaign organizer Yanin Peña is currently fighting for the passage of a New York City Council bill called Intro 175, which would cap the number of hours home health care workers could work per week at 50. Under the current 13-hour rule, home care companies compensate aides working 24-hour shifts for only 13 hours of work, if they get eight hours of sleep, including five uninterrupted hours, and three hours for meals each day. That is not enough, Peña said, adding that it is difficult to enforce and workers are losing wages because of it.

“Over the past eight years, home health workers have been coming to our worker center, the National Mobilization Against Sweatshops, sharing horror stories such as going days on end without sleep, they talk about the destruction of their bodies, their lives, their family relationships,” Pena said.

The panel was the latest in the Work Law as Privatized Public Law series.